Opinion 21-29

March 11, 2021

Digest:         A full-time judge who worked for an insurance company more than a decade ago and has a pension benefit associated with that company is disqualified when that former employer appears as an insurer of a party in a lawsuit pending before the judge. However, the disqualification is subject to remittal.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(c); Opinions 21-22; 18-118; 04-42.

Opinion:

         A full-time judge previously worked for an insurance carrier over a decade ago. The judge has a pension associated with that company that is independently managed by an outside third party. The pension is not in pay status and the judge’s former employer’s obligation to contribute to that pension on the judge’s behalf ended when the judge’s employment ended. The judge has been assigned to hear certain cases where defendants are insured by the judge’s former employer. The judge assumes that disqualification is necessary but asks whether the disqualification is subject to remittal.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must also disqualify themselves in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), or where the judge has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]).

         A judge who is the beneficiary of a pension through a previous employer maintains a financial connection to that employer, giving rise to a situation “in which the judge’s impartiality might reasonably be questioned” (see 22 NYCRR 100.3[E][1]). Accordingly, the judge must disqualify in cases involving that former employer (see Opinions 04-42; 18-118). However, that disqualification is subject to remittal (see id.).

Note on Remittal

         As a reminder, it is not the parties’ burden to request the judge’s disqualification; rather, “it is the judge’s burden to disqualify him/herself at the outset, even if the parties are fully aware of the conflict and do not express any concern” (Opinion 21-22[A] [citation omitted]).

         Although remittal is now available even when a party is unrepresented, judges should continue to carefully follow the three-step remittal process (id. [citations omitted]):

First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

These steps reflect that “[t]he decision to remit must be made freely, willingly, and without coercion, in full knowledge of the relevant facts” (id.).